Reninger v. Department of Corrections , 134 Wash. 2d 437 ( 1998 )

Talmadge, J.

We are asked in this case to decide if state correctional officers who were disciplined through the State’s personnel process can, after losing their appeals of that discipline before the State Personnel Appeals Board (PAB), state in superior court claims for wrongful constructive discharge or tortious interference with a business expectancy. We hold those officers do not have a cause of action for wrongful constructive discharge under Washington law on these facts and collateral estoppel bars their tortious interference claim. We reverse the trial court’s judgment and remand the case for entry of an order dismissing the officers’ claims with prejudice.

ISSUES

1. Do the officers state a claim for wrongful constructive discharge where they fail to prove they were constructively terminated in contravention of public policy?

2. Are the officers collaterally estopped from asserting a claim of tortious interference with a business expectancy where they litigated their discipline administratively in the state personnel process and the Personnel Appeals Board ultimately ruled against them?

FACTS

William Cohen began with the Department of Corrections (DOC) in 1975 at the Washington Corrections Center in Shelton. While at Shelton he was part of the statewide Emergency Response Team, which the Department of Corrections used to quell disturbances in state prisons. He was involved in terminating the riots at the Walla Walla prison in 1978-79. As a result of his Emergency Response Team activities, he was known and disliked by prisoners statewide. He claimed to have received injury and death threats during his time at the Shelton facility. He became a lieutenant in 1981 and transferred to McNeil Island Correctional Center (McNeil). He was qualified as a master firearms instructor and a sniper. He became the commanding officer of the McNeil Island Correctional Center Emergency Response Team (ERT).

Richard Reninger became a state correctional officer in 1981 when the Department of Corrections took over the federal penitentiary on McNeil Island. Prior to that, Reninger had been an employee of the Federal Bureau of Prisons. He became a member of Cohen’s ERT at McNeil, and in 1988 was appointed Armory Sergeant. His duties as Armory Sergeant included maintaining and accounting for firearms and equipment.

On October 18, 1988, Reninger and Cohen trained other correctional officers for weapons recertification. To conduct the training, Reninger and Cohen removed weapons and ammunition from the armory and transported the equipment and the trainees to the firing range. At the range, they first moved the equipment into the range office and later took the equipment to the range for the actual training. While the weapons were not in use, they were kept in the range office. The standard procedure for the training session was, once the class ended, all weapons were moved back to the vehicle and the range office was cleared of any weapons. The group would then drive back to the armory and move all the weapons and ammunition back into the armory. Reninger and Cohen testified they properly returned and secured the firearms that day.

However, when Reninger returned to the armory on Monday, October 24, 1988, he noticed three shotguns were missing from their slots. After searching for the shotguns, Reninger called Correctional Captain Allen Scamahorn. Captain Scamahorn summoned Reninger to his office and informed him that Captain Daniel had found the three shotguns at the range office.

Cohen and Reninger denied leaving the shotguns unsecured at the range office. However, on October 24, 1988, Captain Daniel filed employee conduct reports against each, alleging on Saturday, October 22, 1988, he looked through the window of the range office, saw the barrel of a shotgun, entered the building, and discovered the three shotguns.

McNeil Superintendent William Callahan, in his capacity as Administrative Reviewer, conducted an investigation. As a result of his investigation, he notified Cohen and Reninger by letter dated January 23, 1989 of his conclusions that they had neglected their duty, were inefficient, and were guilty of gross misconduct in failing properly to account for the shotguns. He temporarily demoted both of them—Cohen from Correctional Lieutenant to Correctional Sergeant, and Reninger from Correctional Sergeant to Correctional Officer—with an accompanying reduction in pay, for a period commencing February 10, 1989, and ending June 29, 1989. He also reassigned them to duties at a segregation unit at McNeil.

Reninger ánd Cohen appealed their demotions to an administrative hearing examiner. In proceedings before the hearing examiner, both Cohen and Reninger were represented by counsel, as was the DOC; both counsel gave opening and closing statements; both parties called and cross-examined witnesses who appeared and testified under oath; both Cohen and Reninger were afforded an opportunity to examine DOC documents and admit exhibits; both counsel were afforded an opportunity to make objections and receive rulings on them by the hearing examiner, who was a licensed attorney; both counsel were given the opportunity to submit hearing memoranda; and both counsel conducted formal depositions under oath prior to the hearing. The examiner decided against them. Cohen and Reninger then appealed that decision to the PAB, where another hearing was held in February 1990.

Before the PAB, Reninger and Cohen argued the charges resulted from a conspiracy by other officers to implicate them for leaving the shotguns unattended. The PAB found against them, noting Cohen and Reninger failed to account for the weapons after the training was completed; there was no evidence that anyone else had access to the weapons during the time period in question; and there was no evidence of collusion by other officers to implicate Cohen and Reninger. The PAB concluded Cohen and Reninger committed gross misconduct and that the four-and-one-half-month demotions were appropriate. Cohen and Reninger appealed the PAB decision to the superior court, but that appeal was dismissed.¹

Reninger and Cohen took sick leave commencing January 23, 1989. Because they alleged they would come into potentially hazardous contact with inmates in their new assignments, and they feared for their safety, both officers resigned in March 1989 rather than accept the specific new assignments.²

In June 1990, Cohen and Reninger filed a complaint in the Pierce County Superior Court against DOC, Callahan, Scamahorn, Daniel, and Shepherd alleging (1) DOC wrongfully terminated their employment by wrongful constructive discharge in reassigning them to unreasonably hazardous duties; (2) their fellow officers tortiously interfered with their employment by setting them up for undeserved discipline for alleged failure properly to secure firearms; and (3) the tort of outrage.

The defendants moved for summary judgment claiming Cohen and Reninger’s exclusive remedy was under civil service law, which precluded a claim of wrongful constructive discharge, and the employees were collaterally estopped from asserting facts contrary to those found by the PAB relating to the tortious interference claim. The trial court dismissed several claims, but denied the motion to dismiss the wrongful constructive discharge claim against DOC, and the outrage and tortious interference claims against the individual defendants. The trial court also granted the officers’ motion to exclude any evidence or testimony regarding the discipline by the PAB, but denied the defendants’ motion to exclude any reference to the proceedings on the officers’ unemployment compensation claim before the Department of Employment Security.

The jury rendered a verdict in favor of the officers against the defendants except Callahan³ on constructive wrongful discharge and tortious interference, but not on the outrage claim. The verdicts totaled $537,307. The trial court also awarded attorney fees and costs pursuant to RCW 49.48.030 in the amount of $144,922.80. The defendants appealed the judgment on the verdict of the jury to the Court of Appeals. The officers did not cross-appeal the denial of their outrage claim.

The Court of Appeals reversed the judgment on the verdict of the jury, finding Reninger and Cohen had failed to state a claim for constructive wrongful discharge because civil service remedies for a claim of improper work assignment are exclusive, and because the officers were collaterally estopped by the PAB findings to deny they had been involved in misconduct. The Court of Appeals also applied collateral estoppel to the tortious inference claim. Reninger v. Department of Corrections, 79 Wn. App. 623, 901 P2d 325 (1995). Reninger and Cohen petitioned for review, which we granted.

ANALYSIS

A. CONSTRUCTIVE WRONGFUL DISCHARGE

1. Civil Service Exclusive Remedy

DOC argues initially that any claim by the officers is barred because the State’s Civil Service statutes constitute the exclusive remedy for any and all claims an employee covered by civil service may have against the State or other employees covered by civil service.

Other states have held civil service remedies to be exclusive. In Devine v. City of Des Moines, 366 N.W.2d 580, 582 (Iowa 1985) (quoting Iowa Code Ann. § 400.18 (West 1983)), the Iowa Supreme Court considered language similar to RCW 41.06.010 from the Iowa civil service law: “ ‘No person holding civil service rights as provided in this chapter shall be removed, demoted, or suspended arbitrarily, except as otherwise provided in this chapter.’ ” The court held this language provided the “sole means by which the propriety of a civil service employee’s dismissal may be determined.”

Other states interpreting their civil service law as the exclusive remedy for civil service employees in the absence of a specific exclusivity provision include California (Valenzuela v. State, 194 Cal. App. 3d 916, 240 Cal. Rptr. 45, 48-49 (1987)); Kansas (Gray v. Jenkins, 183 Kan. 251, 326 P.2d 319, 326 (1958)); Mississippi (Scott v. Lowe, 223 Miss. 312, 78 So. 2d 452 (1955)); Tennessee (Wallace v. Neal, 191 Tenn. 240, 232 S.W.2d 49 (1950)); Vermont (Smith v. Highway Bd., 117 Vt. 343, 91 A.2d 805 (1952)); and Wisconsin (Castelaz v. City of Milwaukee, 94 Wis. 2d 513, 289 N.W.2d 259, 267 (1980)). See also Micone v. Town of Steilacoom Civil Serv. Comm’n, 44 Wn. App. 636, 643 n.2, 722 P.2d 1369, review denied, 107 Wn.2d 1010 (1986); accord Albright v. State, 65 Wn. App. 763, 768, 829 P.2d 1114 (1992); White v. State, 131 Wn.2d 1, 929 P.2d 396 (1997).

While RCW 41.06 and WAC Title 356 provide comprehensive rules governing the selection, continued employment, discipline, and discharge of state employees and the remedies afforded state employees, we do not need to reach the exclusive remedy issue here because, in this case, Reninger and Cohen have failed to state claims for constructive wrongful discharge or tortious interference.

2. Wrongful Discharge and At-Will Employees

DOC argues the doctrines of wrongful discharge or constructive wrongful discharge do not apply to employees who are not terminable at-will. Reninger and Cohen, given their civil service status, were not terminable at-will employees. Indeed, our case law has questioned the viability of such a tort where other relief is available to an affected employee. See, e.g., Micone v. Town of Steilacoom Civil Serv. Comm’n, 44 Wn. App. 636, 643 n.2, 722 P.2d 1369 (questioning “whether the doctrine of constructive discharge even applies to employment governed by civil service rules”), review denied, 107 Wn.2d 1010 (1986); Albright v. State, 65 Wn. App. 763, 768-69, 829 P.2d 1114 (1992) (same).

We do not reach this issue because the officers fail to state a claim for wrongful constructive discharge under our cases.

3. Officers Fail to State Wrongful Constructive Discharge Claim

Under the common law, an employer in Washington could discharge an employee with or without cause, absent an agreement to the contrary. Roberts v. Atlantic Richfield Co., 88 Wn.2d 887, 891, 568 P.2d 764 (1977). In Thompson v. St. Regis Paper Co., 102 Wn.2d 219, 685 P.2d 1081 (1984), we first recognized an exception to this general terminable-at-will rule, holding that a cause of action for the tort of wrongful discharge will lie where “the discharge of [an] employee contravenes a clear mandate of public policy.” Thompson, 102 Wn.2d at 232. We have interpreted the cause of action narrowly. White v. State, 131 Wn.2d 1, 19-20, 929 P.2d 396 (1997) (court declines to recognize cause of action for wrongful transfer of state employee). In determining whether a clear mandate of public policy has been violated, we consider “ ‘whether the employer’s conduct contravenes the letter or purpose of a constitutional, statutory, or regulatory provision or scheme.’ ” Thompson, 102 Wn.2d at 232 (quoting Parnar v. Americana Hotels, Inc., 65 Haw. 370, 652 P.2d 625, 631 (1982)). What qualifies as a clear mandate of public policy is a question of law. Gardner v. Loomis Armored, Inc., 128 Wn.2d 931, 937, 913 P.2d 377 (1996).

Reninger and Cohen have not alleged or proved they were terminated for a reason that contravenes public policy. In Gardner, 128 Wn.2d at 936-41, we reiterated the admonition of Thompson-, “the exception [to the at-will doctrine] should be narrowly construed in order to guard against frivolous lawsuits. . . . ‘ “[C]ourts should proceed cautiously if called upon to declare public policy absent some prior legislative or judicial expression on the subject.” ’ ” Gardner, 128 Wn.2d 936-37 (emphasis omitted) (quoting in part Thompson, 102 Wn.2d at 232). In Gardner, we stated, consistent with this principle, that courts have generally found the contravention of a clear mandate of public policy in four limited situations: “(1) where employees are fired for refusing to commit an illegal act; (2) where employees are fired for performing a public duty or obligation . . .; (3) where employees are fired for exercising a legal right or privilege . . .; and (4) where employees are fired in retaliation for reporting employer misconduct, i.e., whistleblowing.” Id. at 936. The touchstone of these exceptions is whether the employee’s termination would contravene some public, as opposed to a purely private, interest. See Dicomes v. State, 113 Wn.2d 612, 618, 782 P.2d 1002 (1989) (“ ‘public policy concerns . . . what affects the citizens of the State collectively’ ”) (quoting Palmateer v. International Harvester Co., 85 Ill. 2d 124, 130, 421 N.E.2d 876 (1981)); Foley v. Interactive Data Corp., 47 Cal. 3d 654, 765 P.2d 373, 379, 254 Cal. Rptr. 211 (1988) (court must inquire whether discharge affects duty which “inures to the benefit of the public at large rather than to a particular employer or employee”); see generally 2 Charles B. Craver et al., Employment Law § 9.10, at 269-70 (Mark A. Rothstein ed., 1994).

If Reninger and Cohen were “set up,” as they allege, then the State arguably violated a “statutory or regulatory provision” by terminating Reninger and Cohen without cause. See RCW 41.06.186 (authorizing the personnel resources board to adopt rules relating to the termination of state employees); WAC 356-34-010, WAC 356-34-040 (defining “cause” for dismissal and providing that public employees may be dismissed “for cause”). The alleged impetus for the plaintiffs’ termination does not, however, fall within one of the categories we recognized in Dicomes. Nor does their firing contravene public policy. Reninger and Cohen claimed they did not leave any firearms unattended and their fellow employees concocted this scheme, based on a personal vendetta, in an effort to get them fired. Although this conduct is certainly unworthy of fellow officers, it does not affect the public collectively, and therefore does not constitute a wrongful discharge under Thompson and Di-comes. If we were to permit the officers to state a wrongful discharge claim simply by alleging that their employer violated a statute, even though the statute has nothing to do with the public as a whole, we would be extending the tort far beyond the parameters set by Thompson and Bicornes. Reninger and Cohen failed to state a claim for wrongful discharge as we defined that concept in Bicornes.

B. TORTIOUS INTERFERENCE WITH BUSINESS EXPECTANCY

Reninger and Cohen claim their fellow officers tortiously interfered with their business expectancy, presumably their employment by DOC. At the outset, there is a question as to whether they state a claim against their fellow officers under this theory. The officers concede they do not state a claim under this theory against DOC because their remedy against DOC lies in contract. A party cannot tortiously interfere with its own contract. Olympic Fish Prods., Inc. v. Lloyd, 93 Wn.2d 596, 611 P.2d 737 (1980); Houser v. City of Redmond, 91 Wn.2d 36, 586 P.2d 482 (1978); Calbom v. Knudtzon, 65 Wn.2d 157, 396 P.2d 148 (1964); Hein v. Chrysler Corp., 45 Wn.2d 586, 277 P.2d 708 (1954); see also W Page Keeton et al., Prosser and Keeton on the Law of Torts § 129, at 990 (5th ed. 1984) (and cases cited at 990 n.24). Arguably, if the fellow employee is acting within the scope of his or her employment, the employee similarly cannot state a claim against that fellow employee in tort.⁴ We do not reach this question here as Reninger and Cohen are collaterally estopped to assert their claim of tortious interference.

C. COLLATERAL ESTOPPEL

The doctrine of collateral estoppel is well known to Washington law as a means of preventing the endless re-litigation of issues already actually litigated by the parties and decided by a competent tribunal. Collateral estoppel promotes judicial economy and prevents inconvenience, and even harassment, of parties. Hanson v. City of Snohomish, 121 Wn.2d 552, 561, 852 P.2d 295 (1993). The elements of collateral estoppel are also well-known:

(1) identical issues; (2) a final judgment on the merits; (3) the party against whom the plea is asserted must have been a party to or in privity with a party to the prior adjudication; and (4) application of the doctrine must not work an injustice on the party against whom the doctrine is to be applied.

Southcenter Joint Venture v. National Democratic Policy Comm., 113 Wn.2d 413, 418, 780 P.2d 1282 (1989) (quoting Shoemaker v. City of Bremerton, 109 Wn.2d 504, 507, 745 P.2d 858 (1987)). The first three elements are plainly met here. The officers dispute the fourth because of the differences between the civil service remedies and those available in a civil tort action.

Decisions of administrative tribunals may have preclusive effect under Washington law. We first recognized in Luisi Truck Lines, Inc. v. Washington Utils. & Transp. Comm’n, 72 Wn.2d 887, 894, 435 P.2d 654 (1967) (citing 2 Kenneth Culp Davis, Administrative Law Treatise § 18.12 (1958)), that the determinations of an administrative agency can have preclusive effect under collateral estoppel principles. The United States Supreme Court also accords preclusive collateral estoppel effect to decisions of administrative agencies. Astoria Fed. Sav. & Loan Ass’n v. Solimino, 501 U.S. 104, 107-08, 111 S. Ct. 2166, 115 L. Ed. 2d 96 (1991).

The Supreme Court said in United States v. Utah Constr. & Mining Co., 384 U.S. 394, 422, 86 S. Ct. 1545, 16 L. Ed. 2d 642 (1966), “When an administrative agency is acting in a judicial capacity and resolves disputed issues of fact properly before it which the parties have had an adequate opportunity to litigate, the courts have not hesitated to apply res judicata to enforce repose.” We have cited this language with approval on two occasions: Stevedoring Servs., Inc. v. Eggert, 129 Wn.2d 17, 40, 914 P.2d 737 (1996); State v. Dupard, 93 Wn.2d 268, 274, 609 P.2d 961 (1980).

We have employed three criteria for deciding whether to apply collateral estoppel to the findings of an administrative body: “ ‘(1) whether the agency acting within its competence made a factual decision; (2) agency and court procedural differences; and (3) policy considerations.’ ” Stevedoring Servs., 129 Wn.2d at 40 (quoting Shoemaker, 109 Wn.2d at 508). The PAB here plainly acted within its competency, but the officers assert the PAB determination did not meet the second and third criteria.

In listing reasons why the PAB procedure was significantly different from the procedures available to Reninger and Cohen in superior court, the officers claim the PAB’s failure to adhere to the rules of evidence vitiates the Board’s proceedings and justifies relitigation of the same factual issues in a trial court, where the rules of evidence apply. We disposed of this same argument in Shoemaker v. City of Bremerton, 109 Wn.2d 504, 511, 745 P.2d 858 (1987):

As for the rules of evidence not being in force, this is generally true of administrative hearings. To hold that it deprives the decision here of preclusive effect would, in effect, be to completely abolish administrative collateral estoppel. In light of the other, sufficient procedural formalities observed, we see no reason to do so.[⁵]

As is true for any quasi-judicial proceeding under the Administrative Procedure Act (APA), appropriate procedural protections must be afforded the parties. The PAB decision makers are competent. The “[pjersons appointed to the board shall be qualified by experience and training in the field of administrative procedures and merit principles.” RCW 41.64.010(1); WAC 358-01-020(1). The PAB members sit as fact finders, not as determiners of the law. They are no more or less competent than a jury to do so. Shoemaker, 109 Wn.2d at 511. Moreover, a good argument can be made that a panel “qualified by experience and training in the field of administrative procedures and merit principles” is likely to reach a just and fair result on a personnel issue.

Reninger and Cohen were afforded and took advantage of numerous procedures that obtain in superior court trials. Both were represented by counsel who gave opening statements and closing arguments. Reninger and Cohen called witnesses on their behalf and cross-examined the State’s witnesses. They subpoenaed and obtained documents through the PAB’s formal discovery process prior to the hearing. They also conducted formal depositions under oath prior to the PAB hearing. Very little of significance distinguished the administrative proceedings in this case from a formal jury trial in superior court.

In Dupard we said, “The doctrine [of collateral estoppel] may be qualified or rejected when its application would contravene public policy.” 93 Wn.2d at 276. This, of course, is a fundamental aspect of the doctrine. It must not apply “so rigidly as to defeat the ends of justice, or to work an injustice.” Henderson v. Bardahl Int’l Corp., 72 Wn.2d 109, 119, 431 P.2d 961 (1967); accord State v. Williams, 132 Wn.2d 248, 937 P.2d 1052 (1997) (rejecting for public policy reasons application of collateral estoppel in a criminal proceeding regarding a prior Department of Social and Health Services (DSHS) determination). Reninger and Cohen principally contend collateral estoppel should not apply because of a “disparity of relief” between what the FAB could award Reninger and Cohen and the tort relief available to them in superior court, specifically, monetary damages.

In Shoemaker, we explicitly held disparity in relief does not justify ignoring the strictures of collateral estoppel:

Shoemaker argues that the Commission’s finding should not be given collateral estoppel effect as a matter of public policy because the disparity between the relief offered by the administrative agency and the federal district court would lead litigants to forgo their administrative remedies for fear of preclusion in other, more substantial claims. See, e.g., Mack v. South Bay Beer Distribs., Inc., 798 F.2d 1279 (9th Cir. 1986). This is a persuasive argument, depending on the actual disparity.

In Mack, the relief at issue was unemployment compensation. Here, the Commission had the power to order reinstatement and back pay; in other words the same relief awarded as consequential damages in the federal court. RCW 41.12.090. Shoemaker also made claims for emotional distress in the civil rights suit which could not have been awarded by the Commission, but this disparity, given the uncertainty of such recovery, is not as great as the disparity of relief in Mack. As a result, collateral estoppel in this case does not violate public policy or work an injustice because of disparity in relief.

Shoemaker, 109 Wn.2d at 513 (emphasis added).⁶ Likewise, in this case, the PAB had the power to order reinstatement and back pay, plus sick leave, vacation accrual, retirement, and Old-Age, Survivors, and Disability Insurance (42 U.S.C. §§ 401-433) credits. RCW 41.06.220. “Any employee, when fully reinstated after appeal, shall be guaranteed all employee rights and benefits, including back pay, sick leave, vacation accrual, retirement and OASDI credits as provided for in RCW 41.06.220.” WAC 358-30-180. There was no disparity of relief to distinguish this case from Shoemaker.

Disparity of relief between what one can recover in the first action compared to what one can recover in the second action is not the gravamen of the decision whether to apply collateral estoppel to the findings of an administrative board. Rather, courts look to disparity of relief to determine whether sufficient incentive existed for the concerned party to litigate vigorously in the administrative hearing. Courts have reasoned that if the amount a party can recover in an administrative proceeding is insignificant, the party is not likely to have litigated the crucial issues vigorously and it would be unfair to employ collateral estoppel against that party in future proceedings to prevent the relitigation of those same issues in another forum.

“Where relatively small amounts are at stake, the incentive to vigorously litigate the matter may be small.” Lewis v. International Bus. Mach. Corp., 393 F. Supp. 305, 308 (D. Or. 1974) (refusing because of unfairness to apply collateral estoppel to findings of an unemployment benefits hearing in a wrongful discharge action). Comment j to Restatement (Second) of Judgments § 28(5) (1982) points out a party may not have had an adequate opportunity to litigate when “the amount in controversy in the first action may have been so small in relation to the amount in controversy in the second that preclusion would be plainly unfair.”

In the present case, Reninger and Cohen displayed no lack of incentive to litigate in the administrative arena. They vigorously opposed their demotions: they argued their case to a hearing examiner; they appealed the hearing examiner’s findings against them to the PAB; and they attempted to appeal the PAB’s findings to the superior court pursuant to RCW 41.64.130. It was only after their lack of success in the administrative arena that they relabeled their claims as wrongful discharge and tortious interference, and relitigated the identical issues before a jury in a civil trial. The same bundle of operative facts was before both the PAB and the jury: did Reninger and Cohen fail to secure the shotguns, or were they “set up” by their superiors? Reninger and Cohen were entitled to one bite of the apple, and they took that bite. That should have been the end of it. The normal rules of collateral estoppel apply here to prevent successive and vexatious litigation. “Any other result would render the administrative forum a place for meaningless dry runs of wrongful termination claims[.]” Miller v. County of Santa Cruz, 39 F.3d 1030, 1038 (9th Cir. 1994), cert. denied, 515 U.S. 1160, 115 S. Ct. 2613, 132 L. Ed. 2d 856 (1995). Reninger and Cohen are collaterally estopped to relitigate the misconduct issues.

CONCLUSION

The correctional officers failed to state claims for wrongful constructive discharge, and their claims for tortious interference with a business expectancy were collaterally estopped by the decision in the PAB proceedings. We reverse the judgment on the verdict of the jury and remand the case to the Pierce County Superior Court for entry of a judgment dismissing the officers’ complaint with prejudice.

Durham, C.J., and Dolliver, Guy, and Johnson, JJ., concur.

1 Reninger and Cohen apparently failed to file a timely notice of appeal from the PAB decision in the proper county.

2 Neither officer utilized the civil service appeals process or complained to the Department of Labor & Industries under the Washington Industrial Safety and Health Act (WISHA) concerning their reassignments. They did, however, file unemployment claims. These claims were initially denied on the basis Reninger and Cohen had left their positions voluntarily and “without good cause.” They then appealed to the Office of Administrative Hearings (OAH) which held they were justified in resigning to avoid a significant threat to their safety and a complaint to their superiors would have been futile. The Commissioner of Employment Security affirmed the OAH decision.

3 The jury verdict form did not include DOC among the listed defendants against whom a verdict could be rendered, even though only DOC could discharge the officers. Without objection, the trial court’s judgment was entered against DOC in light of DOC’s contract to indemnify the individual defendants.

4 For example, in Houser, the plaintiffs sued the City of Redmond for tortious interference with a contract to which Redmond was a party because of the acts of Redmond’s employees. We held that if Redmond’s employees were acting within the scope of their employment, their actions were the actions of the City itself and the plaintiffs’ remedy was an action for breach of contract. If the employees’ actions were outside the scope of their employment with Redmond, the City was not responsible for their acts; the plaintiffs could sue the employees individually, but not the City of Redmond, for tortious interference. Houser, 91 Wn.2d at 39, 40.

5 In hearings before the PAB, prehearing discovery pursuant to the civil rules is permitted, WAC 358-30-150(1), as are subpoenas and subpoenas duces tecum, WAC 358-30-120(1).

6 Although in Shoemaker we rejected the approach of the Court of Appeals for the Ninth Circuit in Mack v. South Bay Beer Distribs., Inc., 798 F.2d 1279 (9th Cir. 1986), it is useful to note Mack does not in any sense stand for the proposition that, standing alone, disparity of relief as defined by the amount of money a plaintiff may obtain is a public policy reason for disregarding the principles of collateral estoppel. Mack’s employer fired him. An agency denied Mack’s application for unemployment benefits. On appeal, the California Unemployment Insurance Appeals Board affirmed the denial of benefits, finding Mack’s employer had fired him for misconduct. Instead of appealing the Board’s determination in state court, Mack brought suit in federal court against his former employer for age discrimination under the Age Discrimination in Employment Act. The district court dismissed the action, holding it was barred by collateral estoppel. The Mack court reversed, refusing to apply collateral estoppel. In a later opinion, the Court of Appeals for the Ninth Circuit explained the Mack result:

[I]n Mack [we] declined to give an unreviewed administrative hearing preclusive effect primarily because the plaintiff had had no opportunity to litigate his age discrimination claim. . . . The nature of the unemployment compensation hearing had denied him the opportunity to litigate his claim and it was unclear if any evidence at all on the issue of age discrimination had been presented. Eilrich v. Remas, 839 F.2d 630, 633 (9th Cir.), cert. denied, 488 U.S. 819, 109 S. Ct. 60, 102 L. Ed. 2d 38 (1988). We employed similar reasoning recently in State v. Williams, 132 Wn.2d 248, 937 P.2d 1052 (1997). A DSHS administrative law judge had found Williams not guilty of welfare fraud. Nevertheless, she was subsequently tried and convicted in superior court for first degree theft stemming from welfare fraud. On appeal, we held collateral estoppel did not apply to the administrative hearing result because, among other things, the purpose of the criminal prosecution was to determine whether Williams had committed a crime, an inquiry better addressed to the criminal justice system. Id. at 256. No such situation obtains in the case at bar. In the administrative proceedings, Reninger and Cohen strenuously litigated the facts at issue in their subsequent case in superior court.